They do some resource sharing. Technically, it's not really one antenna per subscriber, but rather, "we have 10,000 antennas and when you sign on to watch live, we'll pick one unused one." There's no guarantee that tomorrow you'll get the same physical antenna you have right now, so there is some question of whether you're really renting it the antenna.

There is a still an unique antenna in the array for every recording. Until congress outlaws time sharing the courts not touching that argument

17 USC 106:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Congress has outlawed time sharing of individual copies of works. No, you cannot start your own Blockbuster from your DVD collection and refuse to pay royalties.

You might wanna reread that law again it doesn't out law renting VCRs

My post had nothing to do with renting VCRs. Not quite sure what you're confused about.

That you have absolutely no clue WTF you're talking about

Aereo timeshares physical antennas and rents out DVRs, nothing in the law you quoted has anything to do w/ either of those 2 things

There is no law regulating how small antennas are legally allowed to be

They do have to obey the laws of physics however. It's hard enough picking up stations for redistribution on a standard tower with directional antennas. The idea that each of these micro antennas on a circuit board in a server rack do the same is rather doubtful.

Aereo timeshares physical antennas and rents out DVRs, nothing in the law you quoted has anything to do w/ either of those 2 things

Yes, clearly, I don't know that Aereo timeshares physical antennas and rents out DVRs. That's why I never said anything like:

Theaetetus:I used Aereo this past fall so that I could watch live football, without paying for full cable.Theaetetus:Aereo doesn't broadcast anything - they unicast everything, on a one customer=one receiver/DVR basis. It's very similar to that Cartoon Network case I quoted from above - a single unique copy is made for each subscriber and sent only to the subscriber.

Theaetetus:They do some resource sharing. Technically, it's not really one antenna per subscriber, but rather, "we have 10,000 antennas and when you sign on to watch live, we'll pick one unused one." There's no guarantee that tomorrow you'll get the same physical antenna you have right now, so there is some question of whether you're really renting it the antenna.

Theaetetus:If they had one giant antenna and headend, then existing court decisions would say that they were illegally publicly performing or displaying the signal. With individual signals, the argument is that they are not providing a single signal "to the public", but just to an individual.

Obviously, I have no idea how Aereo works. You sure have adequately described what I'm saying.

There is no law regulating how small antennas are legally allowed to be

They do have to obey the laws of physics however. It's hard enough picking up stations for redistribution on a standard tower with directional antennas. The idea that each of these micro antennas on a circuit board in a server rack do the same is rather doubtful.

Exactly. That's why I mentioned RF channels 2 & 4 in New York City. A bow-tie antenna can get UHF, but you need rabbit ears or a proper antenna for VHF. There's no way one dime-sized antenna like theirs can pick up the lower frequencies.

Theaetetus:ShadowKamui: That you have absolutely no clue WTF you're talking about

Aereo timeshares physical antennas and rents out DVRs, nothing in the law you quoted has anything to do w/ either of those 2 things

Yes, clearly, I don't know that Aereo timeshares physical antennas and rents out DVRs. That's why I never said anything like:

Theaetetus: I used Aereo this past fall so that I could watch live football, without paying for full cable.Theaetetus: Aereo doesn't broadcast anything - they unicast everything, on a one customer=one receiver/DVR basis. It's very similar to that Cartoon Network case I quoted from above - a single unique copy is made for each subscriber and sent only to the subscriber.Theaetetus: They do some resource sharing. Technically, it's not really one antenna per subscriber, but rather, "we have 10,000 antennas and when you sign on to watch live, we'll pick one unused one." There's no guarantee that tomorrow you'll get the same physical antenna you have right now, so there is some question of whether you're really renting it the antenna.Theaetetus: If they had one giant antenna and headend, then existing court decisions would say that they were illegally publicly performing or displaying the signal. With individual signals, the argument is that they are not providing a single signal "to the public", but just to an individual.

Obviously, I have no idea how Aereo works. You sure have adequately described what I'm saying.

Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Thea: I like you and value your legal analysis on most things. But in this instance, your wording and citation were a little unwieldy.

The timeshare argument was made in relation to the antennae. You responded that timesharing content was not ever permissible. The content was not the topic of the timeshare analogy, the antenna was.

Here is the exchange, snipped for brevity, but still containing the relevant passages:

Farker: There is a still an unique antenna in the array for every recording. Until congress outlaws time sharing the courts not touching that argument

YOU: 17 USC 106:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Congress has outlawed time sharing of individual copies of works.

As you can hopefully see, the timesharing analogy got off the rails when you were referring to works, rather than the antenna, whereas the person you were responding to was talking about the antenna and said nothing about the works.

Thea: I like you and value your legal analysis on most things. But in this instance, your wording and citation were a little unwieldy.

The timeshare argument was made in relation to the antennae. You responded that timesharing content was not ever permissible. The content was not the topic of the timeshare analogy, the antenna was.

Here is the exchange, snipped for brevity, but still containing the relevant passages:

Farker: There is a still an unique antenna in the array for every recording. Until congress outlaws time sharing the courts not touching that argument

YOU: 17 USC 106:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Congress has outlawed time sharing of individual copies of works.

As you can hopefully see, the timesharing analogy got off the rails when you were referring to works, rather than the antenna, whereas the person you were responding to was talking about the antenna and said nothing about the works.

Sure. I took issue with his broad statement that Congress had not outlawed time sharing, when in fact, they have outlawed time sharing of individual works.

Additionally, as I noted above, the time sharing of the Antennas/DVRs raises the question over whether Aereo is really renting the antennas out, or whether subscribers are merely getting a slot in a pool of shared resources. This was the "legal fiction" that ShadowKamui first demanded an explanation of:

ShadowKamui:Rincewind53: Yeah, but when the "rental" of the antenna is somewhat of a fiction, it gets murkier.

What fiction, there's an actual antenna physically on the circuit board

Rincewind53:ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetus:I took issue with his broad statement that Congress had not outlawed time sharing

This was the point that your JD kicked in and you started talking "legalese" versus "commonspeak."

I read the timesharing broad statement and related it to the antennae, analogizing it to an actual timeshare of a building in the traditional sense. As far as I know, Congress has not outlawed that particular brand of timesharing.

You took the overly broad statement and narrowed it to another topic that, while related, was not exactly explanatory nor contradictory to the original assertion that Congress has not outlawed timesharing as it is commonly defined and understood.

ITo be clear, I am not saying anyone is wrong here, just that I can understand where the confusion came from.

Back to the case, however. You then said something that perked my ears. Can you expound on how this statement would make a legal difference?

Theaetetus: raises the question over whether Aereo is really renting the antennas out, or whether subscribers are merely getting a slot in a pool of shared resources.

If I understand you correctly, you do buy into the notion that Aereo is unicasting and not broadcasting, so I am curious as to why the nature of the rental agreement would make a legal difference.

ShadowKamui:Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

ShadowKamui:Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetusis an actual lawyer, unlike (I suspect) you.

You know what they call a guy in med school who got a D. Doctor

You now what they call a guy who never went to med school but still tries to give medical advice?

I'm a young professional that works for a CBS affiliate. I support Aereo for several reasons:1) Television is dying and needs a reformative kickstart2) In general, local advertisers will reach more people2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.3) I'm in advertising, and this could provide valuable research to advertisers if its accessed online. Local business owners wet themselves over IP targeting.4) Hell, a few years from now, you could even make ads clickable and redirect directly to the brand's website.

So, yeah. If this rules in Aereo's favor, CBS will defnitely lose some capital in the short-term, but they - and television in general - will benefit from it longterm if they can properly adapt to the changes.

aintnuttintofarkwith:I'm a young professional that works for a CBS affiliate. I support Aereo for several reasons:1) Television is dying and needs a reformative kickstart2) In general, local advertisers will reach more people2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.3) I'm in advertising, and this could provide valuable research to advertisers if its accessed online. Local business owners wet themselves over IP targeting.4) Hell, a few years from now, you could even make ads clickable and redirect directly to the brand's website.

So, yeah. If this rules in Aereo's favor, CBS will defnitely lose some capital in the short-term, but they - and television in general - will benefit from it longterm if they can properly adapt to the changes.

Sure, but the decision-makers at CBS are looking at next quarter's numbers, not the numbers five years from now.

qorkfiend:aintnuttintofarkwith: I'm a young professional that works for a CBS affiliate. I support Aereo for several reasons:1) Television is dying and needs a reformative kickstart2) In general, local advertisers will reach more people2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.3) I'm in advertising, and this could provide valuable research to advertisers if its accessed online. Local business owners wet themselves over IP targeting.4) Hell, a few years from now, you could even make ads clickable and redirect directly to the brand's website.

So, yeah. If this rules in Aereo's favor, CBS will defnitely lose some capital in the short-term, but they - and television in general - will benefit from it longterm if they can properly adapt to the changes.

Sure, but the decision-makers at CBS are looking at next quarter's numbers, not the numbers five years from now.

The_Six_Fingered_Man:Back to the case, however. You then said something that perked my ears. Can you expound on how this statement would make a legal difference?

Theaetetus: raises the question over whether Aereo is really renting the antennas out, or whether subscribers are merely getting a slot in a pool of shared resources.

If I understand you correctly, you do buy into the notion that Aereo is unicasting and not broadcasting, so I am curious as to why the nature of the rental agreement would make a legal difference.

Sure... As I said above, I think this case should come down on Aereo's side and that Congress should be the ones to update the law, but that relies on SCOTUS having the restraint to say "this is wrong, but not currently illegal under the law, so Congress, get your shiat together" rather than "this is wrong so we're gonna rewrite the law in some short-sighted way." They're less likely to have that restraint if they think Aereo is not just being legally clever to find a loophole, but that they're playing fast and loose with the facts...... which brings us to the fact that Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas", the Justices, who are not as technologically savvy as they think they are, will start wondering if Aereo has been misleading them. And if so, that will make them less likely to apply the restraint that they're supposed to.

Short version: legally, it doesn't make a difference to the copyright infringement claim and Aereo should be in the clear. Practically, it's not good to have the core of your defense rest on highly nuanced facts that are not technically, unambiguously, 100% undeniably true.

aintnuttintofarkwith:2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.

This right here. Unless I start making >100k a year I will never pay for cable again. I still get advertisements from AT&T trying to get me to get cable again and it makes me angry to read it. I still feel ripped off for having cable for a year.

Theaetetus:The_Six_Fingered_Man: Back to the case, however. You then said something that perked my ears. Can you expound on how this statement would make a legal difference?

Theaetetus: raises the question over whether Aereo is really renting the antennas out, or whether subscribers are merely getting a slot in a pool of shared resources.

If I understand you correctly, you do buy into the notion that Aereo is unicasting and not broadcasting, so I am curious as to why the nature of the rental agreement would make a legal difference.

Sure... As I said above, I think this case should come down on Aereo's side and that Congress should be the ones to update the law, but that relies on SCOTUS having the restraint to say "this is wrong, but not currently illegal under the law, so Congress, get your shiat together" rather than "this is wrong so we're gonna rewrite the law in some short-sighted way." They're less likely to have that restraint if they think Aereo is not just being legally clever to find a loophole, but that they're playing fast and loose with the facts...... which brings us to the fact that Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas", the Justices, who are not as technologically savvy as they think they are, will start wondering if Aereo has been misleading them. And if so, that will make them less likely to apply the restraint that they're supposed to.

Short version: legally, it doesn't make a difference to the copyright infringement claim and Aereo should be in the clear. Practically, it's not good to have the core of your defense rest on highly nuanced facts that are not technically, unambiguously, 100% undeniably true.

So the distinction isn't really a distinction other than how it may be perceived by those that will sit in judgment.

Interesting thread, though it only highlights how broken the broadcast model is, and how it's probably all (or almost all) the cable companies' fault.

In a SANE world, every TV station would have a web site and/or dedicated stream service where you could watch the channel on any internet connected machine with halfway decent bandwith and a web browser.

Why not? It's my understanding because cable companies extort local stations to carry their channels to their local market, along with an arcane tangle of transmission/retransmission agreements with the larger networks.

Really, there shouldn't be any reason I couldn't take my pc here in Oklahoma and use the browser to watch some station in south Florida if I wanted to.

Hell, all those stations are supported by ads anyway, and the ads would still be seen-- only by far more people.

dynomutt:Pandora and Spotify deliver from their stored catalogs, and do so based upon users' indicated preferences and schedules. Aereo does not. The equivalent to Aereo would be (which I have not seen done, but could exist out there) records from a radio based in a particular physical location at the request of a human user on a particular frequency for a particular period of time. The selection of those values is aided by a schedule provided by this theoretical Aereo equivalent provider. THIS IS TOTALLY DIFFERENT FROM PANDORA OR SPOTIFY

/keep your mouth shut, the adults are talking.

How does IHeartRadio fit into all this? They let you tune into radio stations from across the nation, IIRC.

Rincewind53:ShadowKamui: Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetusis an actual lawyer, unlike (I suspect) you.

You know what they call a guy in med school who got a D. Doctor

You now what they call a guy who never went to med school but still tries to give medical advice?

An idiot.

No calling out Doctor Zoidberg as being completely wrong does not make one an idiot. Bad lawyers w. little to no understanding of basic electronics shouldn't be spouting off random crap from some law book to coverup their stupidity.

Splitters and amplifiers would be illegal, hell depending on the signal splicing a wire would be illegal. Physics doesn't work that way no matter how stupidly you wanna interpret a law that nobody w/ any intelligence has ever been stupid enough to try and interpret it that way before

CtrlAltDestroy:dynomutt: Pandora and Spotify deliver from their stored catalogs, and do so based upon users' indicated preferences and schedules. Aereo does not. The equivalent to Aereo would be (which I have not seen done, but could exist out there) records from a radio based in a particular physical location at the request of a human user on a particular frequency for a particular period of time. The selection of those values is aided by a schedule provided by this theoretical Aereo equivalent provider. THIS IS TOTALLY DIFFERENT FROM PANDORA OR SPOTIFY

/keep your mouth shut, the adults are talking.

How does IHeartRadio fit into all this? They let you tune into radio stations from across the nation, IIRC.

It helps that IHR is owned by Clearchannel Communications, which owns a lot of radio stations, so presumably they're allowed to use their own content. I don't know if 100% of their content is CC content, but I assume they're paying for licenses for content they don't already have a license to.

The_Six_Fingered_Man:So the distinction isn't really a distinction other than how it may be perceived by those that will sit in judgment.

Or rather, it's an important distinction from an engineering and resource-management standpoint; but an irrelevant distinction from a copyright law standpoint... but the justices may confuse the former with the latter if they think they're being snookered.

Riche:Interesting thread, though it only highlights how broken the broadcast model is, and how it's probably all (or almost all) the cable companies' fault.

In a SANE world, every TV station would have a web site and/or dedicated stream service where you could watch the channel on any internet connected machine with halfway decent bandwith and a web browser.

Why not? It's my understanding because cable companies extort local stations to carry their channels to their local market, along with an arcane tangle of transmission/retransmission agreements with the larger networks.

Really, there shouldn't be any reason I couldn't take my pc here in Oklahoma and use the browser to watch some station in south Florida if I wanted to.

Hell, all those stations are supported by ads anyway, and the ads would still be seen-- only by far more people.

Whoa there, fella. Slow your roll. You kind of have it backward. Cable companies pay the local stations for transmission, not the other way around.

And why would some station in south Florida care if you're watching in Oklahoma? Let me rephrase that. Why would a local advertiser, who is advertising on a local station in south Florida, want to pay the network more because some random person in Oklahoma, who will never shop at Bob's Boot Emporium or request legal services from Bob Loblaw, is watching their commercials?

The reason you can't watch television online is not because the cable companies don't want it. Hell, Dish Network is backing Aereo in this case because THEY WANT TO DO THE EXACT SAME THING. The reason you can't watch (all) television online is because the networks make more money selling their content to cable companies than they likely would to individual consumers.

rugman11:And why would some station in south Florida care if you're watching in Oklahoma? Let me rephrase that. Why would a local advertiser, who is advertising on a local station in south Florida, want to pay the network more because some random person in Oklahoma, who will never shop at Bob's Boot Emporium or request legal services from Bob Loblaw, is watching their commercials?

Because the South Florida station can connect to an ad server that inserts interstitial ads into the streams, customized based on the viewer's location, and thus get a bit of extra revenue from the Oklahoma advertiser who has their ad played in place of Bob's Boot Emporium for the Oklahoma viewer. ;)

Riche:Hell, all those stations are supported by ads anyway, and the ads would still be seen-- only by far more people.

Except that they aren't, anymore. Ads are a big part of the pie, yes, and a bigger part of the balance sheet for your local network affiliate than for something like Lifetime or Discovery.

But, your local network affiliate is also sucking in a lot of money from the cable/Dish bills in re-transmission fees. If the typical network affiliate had to live on their ad revenue alone, most of them would have to drop a lot of their expenses (news/weather/local sports stuff).

The OTA signal is somewhat of an afterthought at this point. They keep it up for somewhat historical reasons, and because the networks (CBS, etc) want to be shown on 'broadcast'. In the next 10-15 years, as broadcasters are able to sell "their spectrum" to the mobile data providers and the networks adapt (possibly including the death of the affiliate middlemen), broadcast TV will die out.

dynomutt:Aereo IS a hosted-DVR service. They utilize the same legal loophole that Cablevision DVR service did to become a reality. http://multichannel.com/news/content/cablevision-blasts-broadcasters- t ying-rs-dvr-aereo-litigation/356730 Of course, CV didn't know what a "Pandora's Box" they were opening at the time.

Know what the difference here is? Cablevision is paying retransmission consent fees to the stations, as well as copyright.gov fees for each subscriber.

Theaetetus:The_Six_Fingered_Man: So the distinction isn't really a distinction other than how it may be perceived by those that will sit in judgment.

Or rather, it's an important distinction from an engineering and resource-management standpoint; but an irrelevant distinction from a copyright law standpoint... but the justices may confuse the former with the latter if they think they're being snookered.

There is a separate tuner and DVR for all users. Nobody but you is being stupid enough to argue that possibly time sharing a passive wire counts a copy right infringement. Physics doesn't work that way

qorkfiend:It helps that IHR is owned by Clearchannel Communications, which owns a lot of radio stations, so presumably they're allowed to use their own content. I don't know if 100% of their content is CC content, but I assume they're paying for licenses for content they don't already have a license to.

Ah. I didn't know that. Nor did I think to look into who owns them. Thanks for that clarification.

ShadowKamui:Rincewind53: ShadowKamui: Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetusis an actual lawyer, unlike (I suspect) you.

You know what they call a guy in med school who got a D. Doctor

You now what they call a guy who never went to med school but still tries to give medical advice?

An idiot.

No calling out Doctor Zoidberg as being completely wrong does not make one an idiot. Bad lawyers w. little to no understanding of basic electronics shouldn't be spouting off random crap from some law book to coverup their stupidity.

What about good lawyers with electronics and broadcast engineering backgrounds who are quoting statutes to correct an overly broad statement about the law?

Theaetetus:rugman11: And why would some station in south Florida care if you're watching in Oklahoma? Let me rephrase that. Why would a local advertiser, who is advertising on a local station in south Florida, want to pay the network more because some random person in Oklahoma, who will never shop at Bob's Boot Emporium or request legal services from Bob Loblaw, is watching their commercials?

Because the South Florida station can connect to an ad server that inserts interstitial ads into the streams, customized based on the viewer's location, and thus get a bit of extra revenue from the Oklahoma advertiser who has their ad played in place of Bob's Boot Emporium for the Oklahoma viewer. ;)

I've been waiting for broadcasters to figure this out forever. I watch something On Demand and it's got old commercials that aren't even relevant anymore. You would think that they would have figured out a way to partner with the cable companies and exploit remote DVR storage technology to change the ads and thus be able to charge advertisers for Live+7 or Live+30 viewing instead of just Live+3.

So Disney buys an ad run for the Muppets on March 20th but I DVR the show and don't watch the ad. It doesn't help them if I see that ad when I watch the episode two weeks later. But if they had stored my recording in the cloud and were able to swap out the ad for a new Captain America commercial? Then a Million Dollar Arm commercial two weeks later, and a Maleficent ad two weeks after that. Everybody would win.

ShadowKamui:Theaetetus: The_Six_Fingered_Man: So the distinction isn't really a distinction other than how it may be perceived by those that will sit in judgment.

Or rather, it's an important distinction from an engineering and resource-management standpoint; but an irrelevant distinction from a copyright law standpoint... but the justices may confuse the former with the latter if they think they're being snookered.

There is a separate tuner and DVR for all users.

Concurrent

users, yes. Not for all subscribers. For efficiency, Aereo - along with resource providers in just about every industry from cloud computing to cellular or land-based communications etc. - has a fewer number of resources than subscribers, because they know that statistically, no more than n% of their subscriber base is attempting to use a resource at any one time, with n<100... and quite probably n<50, and possibly even n<10. Accordingly, they can share any one particular resource among multiple subscribers, shifting it between them as necessary so that the resource stays utilized even when a subscriber is idle.

Shiat, the phone company has been doing that for a century.

Nobody but you is being stupid enough to argue that possibly time sharing a passive wire counts a copyright infringement. Physics doesn't work that way

Actually, nobody is being stupid enough to argue that. You are fighting a strawman, and everyone except you has noticed it.

ShadowKamui:Rincewind53: ShadowKamui: Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia. Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetusis an actual lawyer, unlike (I suspect) you.

You know what they call a guy in med school who got a D. Doctor

You now what they call a guy who never went to med school but still tries to give medical advice?

An idiot.

No calling out Doctor Zoidberg as being completely wrong does not make one an idiot. Bad lawyers w. little to no understanding of basic electronics shouldn't be spouting off random crap from some law book to coverup their stupidity.

Splitters and amplifiers would be illegal, hell depending on the signal splicing a wire would be illegal. Physics doesn't work that way no matter how stupidly you wanna interpret a law that nobody w/ any intelligence has ever been stupid enough to try and interpret it that way before

As someone who does work in RF, I have to say you come across in this thread as "not even wrong".

dynomutt:Enuratique: I was an active Aereo subscriber for a few months, so I know the service very well... Reading through these threads it's obvious a lot of people don't fully understand the scope and breadth of Aereo's offerings (in other words, people think it does a lot more than it actually does). While I liked Aereo, and I want to see them win just on the grounds of me liking to see innovative technology/business models triumphing over antiquated laws, I don't think Aereo is going to win.

The whole 1 antenna + 1 recording per user is a red herring. The fact that the OTA signal is free to begin with is a red herring. The argument that you're renting infrastructure and not paying for content is also a red herring. A clever argument from Aereo's lawyers (if that's really their tact here).

I saw this analogy in the other thread and I think it makes the most sense to me:

Pandora/Spotify/Slacker all broadcast music to me for free. They're able to do this because they've gotten license agreements from the content owners (RIAA/Sony/Universal/BMG, et al) which allows them to broadcast that music in return for meeting certain conditions (payment of royalties, restrictions on how songs can be played [ie, no on-demand, no more than 6 skips per hour, etc]). They're able to continue providing this service because they charge advertisers for the ad space created between songs.

Now let's say I come along and figure out how to record these audio streams for my own private enjoyment. Honestly this is probably a violation of the EULA, but let's assume for the sake of argument that it's legally allowed. I then turn around and run a service that lets others record and access songs from my Pandora stream. Again, for each subscriber, I create an additional virtual instance and that person's recordings are only accessible to them. I charge $8 a month for this, since it takes a lot of power/bandwidth/ram to run all those virtual instances.

I'm now profiting off of content to which I neit ...

Wow, who pissed in your cheerios this morning? I guess a better analogy would have been me recording my local NPR affiliate and providing those shows online to my subscribers...

You were missing my point, anyways, and arguing over split hairs. My point, at its base, is that they are making available content that they do not have the rights to.

Theaetetus:Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas"

Is that actually the case, though?

If I'm an Aereo subscriber, am I leasing exclusive use of Antenna NYC-0-108195 for the duration of my subscription? Or will the system connect me to any one free antenna in the NYC-0 cluster depending on service load availability?

Aereo seems to have been so fastidious about obeying the letter of the law in every other aspect of their hardware systems design, I'd be surprised if they hadn't done the former just to be safe.

I wonder how the Supreme Court will overturn this without overturning the 2008 ruling. There doesn't seem to be a lot of difference between remotely recording and storing an OTA signal and remotely recording and storing a cable signal since both are acquired legally.

poot_rootbeer:Theaetetus: Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas"

Is that actually the case, though?

If I'm an Aereo subscriber, am I leasing exclusive use of Antenna NYC-0-108195 for the duration of my subscription? Or will the system connect me to any one free antenna in the NYC-0 cluster depending on service load availability?

Aereo seems to have been so fastidious about obeying the letter of the law in every other aspect of their hardware systems design, I'd be surprised if they hadn't done the former just to be safe.

I have to think Aereo examined their service thoroughly before they could present it to investors.

poot_rootbeer:Theaetetus: Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas"

Is that actually the case, though?

If I'm an Aereo subscriber, am I leasing exclusive use of Antenna NYC-0-108195 for the duration of my subscription? Or will the system connect me to any one free antenna in the NYC-0 cluster depending on service load availability?

The latter... From the 2nd circuit opinion:Aereo's system usually assigns these antennas dynamically. Aereo users "share" antennas in the sense that one user is using a particular antenna now, and another may use the same antenna when the first is no longer using it.

Aereo seems to have been so fastidious about obeying the letter of the law in every other aspect of their hardware systems design, I'd be surprised if they hadn't done the former just to be safe.

The Beatings Will Continue Until Morale Improves:I wonder how the Supreme Court will overturn this without overturning the 2008 ruling. There doesn't seem to be a lot of difference between remotely recording and storing an OTA signal and remotely recording and storing a cable signal since both are acquired legally.

I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1). I haven't read those agreements, but would assume that CV therefore has obtained the necessary rights to broadcast, and therefore employ the technology in question.

In the case of Aereo, while I would like for them to be successful, they aren't paying either of those items.

(1) Cable - Section 111Section 111 of the Copyright Act of 1976, title 17 of the United States Code, established a compulsory licensing system under which cable systems may make secondary transmissions of copyrighted works. The license prescribes various conditions under which cable systems may obtain a compulsory license to retransmit copyrighted works, including the filing of statements of account forms. It also establishes the requirements governing the form, and content of the filing of these semi-annual statements and submission of statutory royalty payments. 37 CFR 201.17

The law requires a cable system to file statements of account for two purposes:To show basis for the semiannual royalty fee the cable system owes under its statutory license; andTo give the information needed to allocate royalty fees among copyright owners.

kev_dog:I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1).

Nope, the 2008 ruling relied on the fact that there were individual DVRs for each cable subscriber at the cable provider's farm, so they weren't retransmitting any individual recording to multiple subscribers. Aereo's system was specifically designed to use the same legal loophole.

Lawnchair:The OTA signal is somewhat of an afterthought at this point. They keep it up for somewhat historical reasons, and because the networks (CBS, etc) want to be shown on 'broadcast'. In the next 10-15 years, as broadcasters are able to sell "their spectrum" to the mobile data providers and the networks adapt (possibly including the death of the affiliate middlemen), broadcast TV will die out.

One reason free OTA television is still around is because of seniors. Many of them have limited budgets and would resent subscriber fees. As long as they continue to be a major voting bloc, it will be difficult to end the service.

Also, while many networks would like to adopt ION's centralized ownership model, their affiliates would fight any such action. I also image that public advocacy groups would fight it, as ION has no localized content (AFAIK). But ION's model does ease user consumption, as ION is available for free via Internet streaming and unencrypted C-band transmissions.

What will be interesting to see is the proliferation of encrypted OTA television after the next major ATSC version is released. The new ATSC-M/H (mobile/handheld) standard introduced protected content, but there aren't many ATSC-M/H tuners out there. What happens when every home 2180p TV includes protected content support?

Theaetetus:kev_dog: I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1).

Nope, the 2008 ruling relied on the fact that there were individual DVRs for each cable subscriber at the cable provider's farm, so they weren't retransmitting any individual recording to multiple subscribers. Aereo's system was specifically designed to use the same legal loophole.

The Copyright Act grants owners various exclusive rights, including the right to "reproduce the copyrighted work in copies" and to "prepare derivative works."1 One such right is the right "to perform the copyrighted work publicly."2 Although the Act has long granted that public performance right in some form, its scope has evolved over the years.

Before the 1976 Copyright Act, it was unclear whether the public performance right applied to cable systems. Cable system operators would erect community antennas to capture broadcast signals and retransmit them over cable lines to subscribers in areas where over-the-air reception was impaired by long distances or hilly terrain. In two cases - Fortnightly Corp. v. United Artists Television, Inc.3 and Teleprompter Corp. v. Columbia Broadcasting System, Inc.4 - the Supreme Court ruled that such cable systems were not "performing" the programs they retransmitted. Since an individual consumer would not be performing by placing an antenna on his own rooftop to improve reception, the Court reasoned, a cable television operator should not be deemed to publicly perform by providing essentially that same service on a larger, commercial scale.

Congress responded in the 1976 Copyright Act. It recognized that, under Fortnightly and Teleprompter, "the cable television industry has not been paying copyright royalties for its retransmission of over-the-air broadcast signals."5 Congress "believe[d] that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs."6 Congress thus amended the public performance definition to clarify its applicability to cable systems while enacting a statutory licensing scheme for cable retransmissions.

Congress accomplished that change through several revisions. First, it enacted a definition of "perform" that included a special definition for "audiovisual works" such as television programs:

To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.8

In other words, to "perform" a television program is to "show" it - a performance is a showing of the program. Congress then further defined what it meant to perform a work "publicly":

To perform or display a work "publicly" means -

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.9

The first clause covers performances in public places, while the second - the "Transmit Clause" - covers transmissions of performances either (i) to public places or (ii) "to the public." A person thus infringes the public performance right when, absent consent or exemption, he "transmit[s] . . . a performance . . . of the work . . . to the public."

Finally, Congress adopted a statutory licensing scheme for cable systems. Under Section 111, "secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station" are subject to statutory licensing upon payment of any applicable fees and compliance with other requirements.10 (Since 1992, broadcasters themselves have also had the right to demand fees from cable companies under the "retransmission consent" provision of the Communications Act.11)

Theaetetus:Aereo's system usually assigns these antennas dynamically. Aereo users "share" antennas in the sense that one user is using a particular antenna now, and another may use the same antenna when the first is no longer using it.

Theaetetus:kev_dog: I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1).

Nope, the 2008 ruling relied on the fact that there were individual DVRs for each cable subscriber at the cable provider's farm, so they weren't retransmitting any individual recording to multiple subscribers. Aereo's system was specifically designed to use the same legal loophole.

And perhaps more relevant from the same linked paper:

Aereo thus performs essentially the same function as a cable provider like Cablevision or a satellite provider like DirecTV or Dish Network: It captures over-the-air broadcasts and retransmits them to subscribers in real time. Unlike cable or satellite operators, however, Aereo does not pay any licensing or retransmission consent fees for providing that service. Cable and satellite providers must either comply with the statutory licensing requirements and pay any applicable fees or else negotiate licenses directly with copyright owners; they must also pay retransmission consent fees to broadcasters. Aereo, by contrast, claims it is exempt from those requirements because it engages in private rather than public performances.47